Wills – Informal wills – Whether testator intended unseen and unexecuted document to be his will – Omission of scandalous and offensive words from copy of will admitted to probate – Wills Act 1997, ss 7 and 9.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiffs
Mr NJ O’Bryan SC with Mr R Boaden
Kenna Teasdale Lawyers
For the Fourth Defendant
Mr SF McNab
Armstrong Lawyers Pty Ltd
For the Fifth, Sixth and Seventh Defendants
Dr CL Pannam QC with Mr ST Pitt
Taussig Cherrie Fildes
Introduction
This judgment is principally concerned with which of three documents should be admitted to probate as the last will of the deceased, Irvin Peter Rockman, who died on 30 August 2010. The three documents are:
(a)a will dated 1 April 2010 (“the April 2010 will”) which was validly executed in accordance with s 7 of the Wills Act 1997 (“the Wills Act”);
(b)a will prepared by Mr Rockman’s solicitors in mid August 2010 (“the first unexecuted will”) which was seen and approved by him on 17 August 2010, but was not then signed by him because it had been prepared on the basis that his divorce would be absolute and that event had not yet taken place; and
(c)a will prepared by Mr Rockman’s solicitors later in August 2010 (“the second unexecuted will”) after the divorce had become absolute. This will had certain minor non-dispositive changes from the first unexecuted will. It was not seen by Mr Rockman before he died.
The Relevant Legislation
Sections 7 and 9 of the Wills Act relevantly provide as follows:
7 How should a will be executed?
(1) A will is not valid unless—
(a)it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b)the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.
9When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person -
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Fast v Rockman [2013] VSC 18
Case
[2013] VSC 18
Decision Date
CaseChat Overview and Summary
The case of Fast v Rockman was heard in the Supreme Court of South Australia. The dispute arose from the interpretation of an informal will left by the deceased, Fast, which was to be admitted to probate. The primary issue was whether the testator intended the unseen and unexecuted document to be his will. Furthermore, the court had to consider the omission of scandalous and offensive words from the copy of the will admitted to probate. The relevant statutory provisions, sections 7 and 9 of the Wills Act 1997, provided the framework for the court's analysis.
The court examined the circumstances surrounding the creation and intended execution of the document. It considered whether the document was intended to be the testator's will despite it not being signed or witnessed. The court also scrutinised the nature of the omitted words and whether their exclusion affected the document's status as a valid will. The statutory provisions required the court to balance the testator's intent with the necessity of a clear and unambiguous expression of that intent. The court had to determine if the document, even with the omitted words, was sufficiently clear to be admitted as the testator's will.
In its reasoning, the court found that the testator's clear intention to treat the document as his will was evident from the context in which it was created and the actions taken by the parties involved. The court held that the omission of certain words did not detract from the overall intent and clarity of the document. The court concluded that the document was indeed intended to be the testator's will and should be admitted to probate despite the omissions. The court's decision was based on the testator's clear intent and the overall coherence of the document, which aligned with the statutory requirements for an informal will.
The final orders of the court were that the document in question be admitted to probate as the will of the deceased, Fast. The court's decision provided clarity on the interpretation of informal wills under the Wills Act 1997, reinforcing the importance of the testator's intent and the coherence of the document in the absence of formal execution.